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2014
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[2014] ZAGPJHC 383
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Highveld Sundication NO. 16 (Pty) Ltd and Others v Ji An Import & Export (Pty) Ltd and Another (46782/13) [2014] ZAGPJHC 383 (5 December 2014)
REPUBLIC OF SOUTH
AFRICA
SOUTH GAUTENG HIGH
COURT
JOHANNESBURG
CASE NO: 46782/13
DATE: 05 DECEMBER 2014
In the matter between:
HIGHVELD SUNDICATION NO. 16 (PTY)
LTD
.........................
First
Applicant
ORTHOTOUCH
LTD
....................................................................
Second
Applicant
ZEPHAN PROPERTIES (PTY)
LTD
.............................................
Third
Applicant
MOXICORP INVESTMENTS (PTY)
LTD
..................................
Fourth
Applicant
And
JI AN IMPORT & EXPERT (PTY)
LTD
......................................
First
Respondent
WANG:
JUN
…............................................................................
Second
Respondent
JUDGEMENT
CARSTENSEN AJ:
1. The Applicant seeks an order in
terms of an amended notice of motion wherein the First Respondent is
directed to vacate the premises
of the shopping centre known as the
Piazza Centre located on erf 522 to 544 and 605 to 612 Blairgowrie,
situated on the corner
of Jan Smuts Avenue and Republic Road,
Randburg, alternatively that the First Respondent is evicted by the
Sheriff and secondly,
for payment of the arrear rental together with
interest and costs.
2. The Applicants’ cause of
action arises out of a written commercial lease concluded between the
First Applicant and the
First Respondent.
3. The First Respondent fell into
arrears with its rental obligations and in addition, did not pay
municipal charges which it was
obliged to do in terms of the
agreement. The Applicants’ founding affidavit attached a
schedule showing that the First Respondent
was in arrears in the
amount of R7 395 699.87 and eventually after placing the First
Respondent on terms on the 30th of August
2013, the First Applicant
cancelled the lease with effect from the 30th of November 2013. This
was done by instituting action
in the High Court. The First
Respondent refused to vacate the premises.
4. The First Respondent also did not
itself occupy the entire premises, but let most of the premises to
sub-tenants.
5. The First Applicant had instituted
an action under case number 41945/13 claiming arrears and demanding
return of the premises,
but undertook in the founding affidavit to
serve a notice of withdrawal and tender the wasted costs thereof.
6. In the answering affidavit the
Second Respondent, representing the First Respondent, contends that
there were misunderstandings
due to the language barrier but admitted
the conclusion of the written agreement of lease on the 7th of
December 2012. However,
he stated that he thought the lease was for
20 years and consequently, sought to rectify the lease agreement.
7. He also stated that he had signed a
preliminary agreement with the First Applicant in terms of which he
was obliged to pay R10
million if he did not sign the lease
agreement. He also believed that the lease agreement would record
that the First Applicant
was responsible for remedying the defects.
Consequently, he signed the lease agreement without the assistance of
an attorney and
attended to extensive renovation of the premises on
which he spent his “own money”, apart from the deposit
and other
costs. He further states that the First Respondent spent
an amount of R18 055 414.76 on the property to get the property back
in a functional state and consequently that:
7.1. not only does the lease agreement
require to be rectified, but that the First Applicant is in breach of
the agreement in refusing
to pay for the repair work;
7.2. he also raises an application
launched in the North Gauteng High Court under case number 75421/13
and the interference by the
First Applicant with the sub-tenants of
the First Respondents.
8. He also states that the First
Respondent has a counterclaim, but that he has been advised that it
is impossible to adjudicate
the counterclaim on motion proceedings
and thus he will institute action proceedings in respect thereof,
once this matter has been
referred to oral evidence or trial.
9. Apart from the defences of “lis
pendens”, lien and rectification, he also contends that there
is no proper description
of the Applicant as the Applicant describes
itself as a private company whereas the lease has been entered into
with Highveld Syndication
No. 16 Ltd, a public company.
Consequently, the First Applicant, the Respondents contend, does not
have locus standi to institute
the application.
10. Although admitting that the
property was built as a shopping centre and admitting the address,
the Respondents also raise an
issue regarding the property
description which, on the Windeed reports, are not the same as those
referred to by the Applicant.
11. There is also an issue which
relates to the actual floor space, but this is not relevant as the
rental does not relate to the
floor space, but rather is a fixed
monthly amount. Consequently, any dispute regarding floor space is,
in my view, for the purposes
of this application, irrelevant.
12. During the hearing of the
application Mr Pye, on behalf of the Applicants, withdrew the
previous action and application and
I made the following order:
12.1. it is noted that the Applicants
withdraw
12.1.1. the application instituted
under case number 2013/46782, filed under notice of motion dated the
19th March 2014, issued
on the 17th March 2014 and contained in
bundles 4 and 5;
12.1.2. the action under case number
41945/2013 in this division, by summons dated the 6th November 2013.
12.2. The Applicants are to pay the
First Respondent’s costs on the scale as between attorney and
client.
13. During the address on behalf of the
Respondents, represented by Mr Cassim SC and Mr Riley, the
Respondents abandoned the defences
in respect of the lien and advised
me that they were not proceeding with the rectification.
14. Mr Cassim then advised that the
only opposition to the application would be based on the fact that
the Applicants have not made
out a case for the relief which it seeks
in the founding papers.
15. Consequently, there is no longer
any dispute in regards to the lien, counterclaim or the
rectification.
16. It is also common cause that the
Respondents are in arrears with the rental payments.
17. Mr Cassim also accepted that the
principle set out in Mignoel Properties (Pty) Ltd v Kneebone,
1989
(4) SA 1042
(A) was applicable, in terms of which “If a lessee
remains in occupation subsequent to the sale of the premises, the
seller
falls out of the picture and in his place the purchaser steps
in as the lessor. It is not necessary for a formal cession to take
place, but the substitution takes place as a matter of law where the
purchaser is substituted as lessor and as “a natural
and
logical commitant of that position, the purchaser acquires all rights
which the lessor enjoyed, qua lessor in terms of the
lease. Those
rights include the right to claim monies owing in terms of the lease
from the lessee’s surety, in the event
of the lessee failing to
pay”.
18. Firstly, with regard to the
distinction between the First Applicant as a private or public
company, I am of the view that there
is no merit in the Respondents’
contention that the lessor and the First Applicant are not the same
person. It is quite
clear that they are, despite the fact that the
word “(Pty)” does not appear in the lease. What does
appear on the
lease is the registration number of the First
Respondent. This is a clear indication of the identity of the legal
persona involved.
In any event, a tenant who holds a property as a
consequence of a lease agreement with a lessor and who has had free
and undisturbed
possession of that property as a consequence of that
lease agreement, is in my view not entitled to question the locus
standi of
the lessor when the lessor seeks to enforce the lease
agreement and the provisions thereof. (Case Ref Blackmore v Moodies
GM and
Exploration Co.,
1917 AD 402
at 403; Broompret Investments v
Paardekraal Concession, 1990 (
1) SA 347
(A) 351; Grimbeek v Leonard
,
1932 CPD 62
at 63)
19. The only other issue which requires
determination relates to the description of the property. The issue
arises because in the
lease agreement, at clause 1.5, the property is
referred to as erf 605 to 612 and erf 544 to 522 Blairgowrie. The
Respondents
argue that in the notice of motion the Applicants refer
to erf 605 to 612 and erf 522 to 544, but the properties in the
Windeeds
report are not the same, rather, the Fourth Respondent is
recorded as owning erf 605 to 612 and erf 544 to erf 604 and
consequently,
the Respondents argue, that on the Applicants’
version the Applicants are not the owners of erf 522 to 543.
20. However, I am satisfied that there
is a clear error on the lease agreement as it ought to refer to erf
544 to 552 and not to
522, this is in accordance with the Windeed
extracts.
21. In any event, I am of the view that
it is not necessary to go that far. It is quite clear that the
parties are arguing about
leased premises which are occupied by the
Respondents and which property the Respondents occupy as a
consequence of the lease agreement.
It is also clear that the leased
property is the Piazza Centre, situate at corner Republic and Jan
Smuts Ave, Randburg consisting
of 14185m² excluding the 2467m²
occupied by the College on the second and third floors.
22. The issue regarding the erven is
also resolved in the replying affidavit where it is clear that the
error which I have referred
to above is being corrected and the erven
in question is 544 to 552 and 605 to 612.
23. The Respondents could have dealt
with this aspect by filing a further affidavit as the reply is dated
February 2014, a number
of months before the matter was heard. In
addition the Applicants provide a satellite map printed off Google
Earth. There is
no dispute in respect of either the address or the
description, but only the erven numbers.
24. Consequently, I am satisfied that
the Applicants are entitled to the relief which they seek and
accordingly I grant the following
order:
24.1. the First Respondent is ordered
to vacate the premises situate at Piazza Centre located at erven 544
to 552 and 604 to 612
Blairgowrie, situated at the corner of Republic
Road and Jan Smuts Avenue, Randburg, within 5 (FIVE) days from date
hereof;
24.2. the Sheriff of the Court is
authorised to do all things necessary to give effect to the aforesaid
order;
24.3. the First and Second Respondents
are ordered, jointly and severally, to make payment to the Fourth
Applicant of the sum of
R6 845 906.44 together with interest thereon
at the rate of 2% per month from the 6th of January 2014 to date of
final payment;
24.4. the First and Second Respondents
are ordered to pay the Applicants’ costs of this application,
jointly and severally,
the one paying the other to be absolved.
P L CARSTENSEN
ACTING JUDGE OF THE HIGH COURT
HEARD: 13 OCTOBER 2014
DELIVERED: 5 DECEMBER 2014
COUNSEL FOR APPLICANTS: ADV. W PYE
INSTRUCTED BY: KYRIACOU INC.
COUNSEL FOR RESPONDENTS: ADV. N
CASSIM SC
ADV. RILEY
INSTRUCTED BY: BORMAN & MOSTERT
INC.
(jmt.27.11.14)